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2013 DIGILAW 4159 (MAD)

Jayaraman v. Ramakrishnan

2013-12-11

K.KALYANASUNDARAM

body2013
Judgment 1. This civil revision petition is directed against the order dated 9.12.2009 passed by the District Munsif, Sirkali, in E.A. No. 146 of 2007 in unnumbered E.P. of the year 2007 in O.S. No.20 of 1999. 2. The petitioners’ mother one Mrs. Dhanlakshmi was the original plaintiff in O.S. No. 20 of 1999 on the file of the District Munsif, Sirkali. She filed the suit of recovery of possession. The suit was dismissed on 22.10.2002. The plaintiff filed an appeal in A.S. No. 100 of 2002 before the Additional Sub Court, Mayiladuthurai. The learned appellate Judge allowed the appeal on 4.7.2003 and thereby, decreed the suit. The petitioners herein filed E.A.No.146 of 2007 before the District Munsif, Sirkali to implead them as legal representatives of the original plaintiff Mrs. Dhanalakshmi. In the petition, they have contended that the original plaintiff died and they are the legal heirs to succeed her properties and they are entitled to execute the decree. The respondent filed his counter contending that the suit was dismissed on 22.10.2002 and the original plaintiff filed appeal in A.S. No.100 of 2002 and while the appeal was pending, she died on 22.12.2002 and the appeal was allowed on 4.7.2003. Since the petitioners were not impleaded in the appeal, the appeal itself got abatted and the decree obtained in the appeal was a nullity. So, the petitioners cannot be impleaded as legal representatives, as the decree is in executable one. The learned District Munsif dismissed the application. Aggrieved by the said order, the present revision is filed. 3. Heard Mr. S. Soundhar the learned counsel for the petitioners and Mr. A. Muthukumar learned counsel for the respondents. 4. The learned counsel for the petitioners contended that the decree passed in the appeal in A.S. No. 100 of 2001 in favour of the plaintiff is not a nullity and it is only an irregularity and it cannot have the effect of making the decree void ab initio. The learned counsel further contended that if the decree is passed against a dead person, it can be claimed as a nullity, but in this case, the decree is passed only in favour of dead person and therefore, it is an executable one. The learned counsel further contended that if the decree is passed against a dead person, it can be claimed as a nullity, but in this case, the decree is passed only in favour of dead person and therefore, it is an executable one. Procedural law shall not stand in the way of justice delivery system and even if there is any procedural lapse, that can be condoned and justice can be done to the party. The learned counsel also submitted that the defendant/judgment debtor was duly represented by his counsel and has contested the appeal and lost his case. If he had been aggrieved by the judgment passed in A.S. No. 100 of 2002, he should have filed an appeal, but he did not file any appeal. So, the decree passed in A.S.No.100 of 2002 has become final. Non-impleading of the legal heirs of the original plaintiff as appellant in the appeal will in no way prejudice the respondent/judgment debtor. 5. Per contra, the learned counsel for the respondent submitted that the appellant died on 22.12.2002 and the appeal will get automatically abatted on expiry of 90 days time. If in the meanwhile, no steps have been taken to bring the LRs of the deceased plaintiff, the decree is a nullity and it cannot be executed against the respondent. The learned counsel further contended that after expiry of the period of 90 days, the Court has no power or jurisdiction to rectify the defect. 6. It is an admitted fact that the sole appellant in A.S.No.100 of 2002 died on 22.12.2002 and the suit filed by the appellant was decreed only on 4.7.2003. The legal heirs of the appellant/the petitioners herein did not take steps to implead themselves in the appeal within the period. This Court in AIR 1983 Mad 5 -Abdul Azeez Sahib v. Dhanabagiammal and others in similar facts of the case has held that the decree passed in favour of a dead person is not a nullity and the fact of death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making the decree void ab initio and the decree is executable. The same view was taken by this Court in the judgment reported in 1995(1) MLJ 381 -K.Krishnaswamy Reddiar and Others v. Manickavasagam. The same view was taken by this Court in the judgment reported in 1995(1) MLJ 381 -K.Krishnaswamy Reddiar and Others v. Manickavasagam. The Honourable Apex Court in AIR 1993 Supp(4) SCC 595-S.Nagaraj and Others v. State of Karnataka and another has held that justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. 7. Learned counsel for the respondent relied on the judgment of the Supreme Court reported in 2001-3-L.W.204-Amba Bai and Others v. Gopal and Others. The Honourable Apex Court in that case held that the suit filed by Lakshmilal was dismissed by the trial Court and the appellate Court allowed the same and decreed the suit. Aggrieved by the same, the defendant Rahulal preferred second appeal in High Court against the decree granting specific performance. During the pendency of the second appeal, the appellant died, which was not brought to the notice of the Court and the appeal was dismissed on 23.5.1991. When the decree holder filed execution petition, it was objected by the legal heirs of judgment debtor that in the second appeal, decree was passed against a dead person and it is in executable and they further contended that the decree passed in second appeal will merge with the decree passed by the first appellate Court. In the above facts, the Honourable Supreme Court has held that the decree in second appeal will not merge with the decree in the first appeal and the decree is an executable one. So, the judgment is not applicable to the facts of this case. 8. As held by the Honourable Apex Court in AIR 1993 Supp(4) SCC 595- S.Nagaraj and Others v. State of Karnataka and another, justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. If the Court finds that the order was passed under mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. 9. If the Court finds that the order was passed under mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. 9. In the light of the above judgment, non-impleading of the legal representatives in the first appeal is only irregularity and it cannot be termed as an illegality. Admittedly the plaintiff has succeeded in the first appeal which has become final. Hence, she cannot be denied her right due to the irregularity. Absolutely no prejudice caused to the respondent due to the non-impleadment of the petitioners herein in the first appeal. 10. In view of my conclusion supra, the order dated 9.12.2009 passed by the District Munsif, Sirkali, in E.A. No.146 of 2007, is set aside and the civil revision petition is allowed. However, there is no order as to costs.